Principles of good governance and the ombudsman: A comparative study on the normative functions of the institution in a modern constitutional state with a focus on Peru

Abstract

The main purpose of this study is to determine the extent to which, through the performance of (indirect) normative functions and the application of principles of good governance as assessment standards, the ombudsman institution can contribute to improving the legal quality of government while enhancing the legitimacy of the administration and the democratic system as a whole. The study has been conducted from a comparative perspective, exploring the performance of the Dutch, UK, Spanish and Peruvian Ombudsmen. However, the main focus is on the examination of the Peruvian Ombudsman, the Defensoría del Pueblo, and the situation of maladministration in Peru. First, the three national ombudsman institutions operating in the European context are analysed. The purpose is to determine how far these ombudsmen, although of different types and belonging to different legal traditions, share the same values and apply similar normative standards that can be traced back to principles of good governance. Then, the Defensoría del Pueblo is analysed as a case study of the ombudsman’s evolving role in new democracies in Latin America. This reflects the wider process of the institution’s hybridisation worldwide, and how its functions and assessment standards have been adapted to the evolution of the constitutional state, not least through application of the principles of good governance as a new source of legitimacy. The primary focus is centred on the steering function of the ombudsman with regard to the promotion of good administration rather than the (human rights-oriented) protective function of the institution. The aim is to demonstrate that the ombudsman’s activities result in changed and improved public administration in modern constitutional states. The legal approach to good governance provides the conceptual framework for evaluating the performance of the ombudsman institution and analysing the standards and principles it applies. In order to identify the values protected and the standards applied by the ombudsman, which are considered as central elements for good governance, the five principles of good governance (properness, transparency, participation, accountability, and effectiveness) are used to frame the analysis. The general conclusion is that despite the specific legal context in which the ombudsman institution operates, it applies similar standards of assessment that can be regarded as standards based on principles of good governance. The ombudsman is an evolving institution that contributes to improving the legal quality of the government. The development of the institution is characterised by the mutual cohesion and hybridisation of its assessment standards and the subsequent hybridisation of the ombudsman institution as such. Hence, the contemporary ombudsman performs a dual function: the protection of human rights and the promotion of good administration. The hybridisation process of the ombudsman institution is led by the development of good governance norms as assessment standards. In this regard, the ombudsman is contributing to developing the legal content of the values associated with the principles of good governance.